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Background

In 2004 a documentary film about the activities of Landmark Education also known as the Landmark Forum or The Forum was broadcast on French television. The film entitled Voyage Au Pays Des Nouveaux Gourous (Voyage to the Land of the New Gurus) was produced by the French news program Pièces à Conviction.

San Francisco-based Landmark Education known for its Landmark Forum motivational workshops describes itself as "a global educational enterprise offering The Landmark Forum and graduate courses " claiming that "[m]ore than 160 000 people participate in Landmark's courses each year."

The documentary is critical of the Landmark program and includes hidden camera footage from inside a Landmark Forum event in France as well as within the Landmark offices in France. It also includes a panel discussion with the host and interviews with a variety of people regarding whether or not Landmark is a cult. According to Landmark the "broadcasting of this program had disastrous consequences and resulted in considerable damage to Landmark Education's subsidiary operating the France."

Landmark's Misuse of the Digital Millennium Copyright Act

The video was posted on several websites including the Internet Archive YouTube and Google. In October 2006 Landmark Education started to send threatening cease and desist letters to online service providers who hosted the material. In addition to disputing the truth of the documentary program's allegations Landmark Education claimed the French documentary infringed its own U.S. copyright in the "Landmark forum leaders manual" (Copyright Reg. No. TXu-1-120-461).

Using the copyright allegation as a pretext Landmark then issued subpoenas pursuant to the Digital Millennium Copyright Act which allows content owners to issue subpoenas to identify alleged infringers even without filing a lawsuit. Subpoenas were sent to Google Video YouTube and the Internet Archive demanding to find the identity of the uploader(s).

A review of the video makes clear that the documentary does not contain a copy of the leader manual referenced in Landmark's letters. Rather it is a news documentary critical of the Landmark organization in France. Moreover even if Landmark's copyrighted works were visible in the documentary any such limited and transformative use of a copyrighted work for purpose of criticism commentary and news reporting is self-evidently fair use and therefore noninfringing.

Landmark is not seeking to identify those who originally made the documentary since it already knows who made it. Nor are the subpoenas based upon the defamation claims Landmark's letter asserts -- DMCA subpoenas are only authorized to identify alleged infringers of the sender's copyright. They are not however designed to allow content owners to identify their critics as Landmark is attempting to do here.

EFF Responds

Landmark's efforts are being challenged on multiple fronts. The Internet Archive is fighting its subpoena and EFF filed official objections on its behalf. EFF will also file a motion to quash the subpoena issued to Google Video on behalf of the anonymous speaker who uploaded the video. Google has advised Landmark that it will not produce the requested information pending a ruling on that motion. YouTube sent notification to the user about its subpoena and is giving the user a reasonable opportunity to move to quash it.

Update: EFF is currently in discussions with Landmark regarding a resolution of it subpoena to Google. In the interim EFF has held off on filing the motion to quash. A draft of the motion which explains our legal arguments is linked below.

Update 2: In a settlement reached November 29 2006 Landmark agreed to withdraw the subpoena to Google and end its quest to pierce the anonymity of the video's poster. Landmark has also withdrawn its subpoena to the Internet Archive. See our Press Release for details.